The U.S. Supreme Court grilled four lawyers Dec. 5 in its effort to determine if a state can require a cake artist to design a cake for a same-sex wedding in spite of his free-speech and free-exercise-of-religion rights.
The justices heard oral arguments in an appeal by Colorado cake artist Jack Phillips and his Masterpiece Cakeshop in a major case at the center of the growing legal and cultural skirmish between religious liberty and sexual liberty.
The court is expected to issue an opinion next year before its term ends in late June or early July.
Phillips, who is a Christian, declined to design and decorate a cake for the wedding of two men because of his belief marriage is between only a male and a female. But he told them he would make and sell them all other baked items.
After the men filed a complaint with the state, the Colorado Civil Rights Commission ordered Phillips to create custom cakes for same-sex ceremonies or quit designing wedding cakes. He stopped designing wedding cakes. The commission also ordered him to re-educate his employees on complying with the Colorado Anti-discrimination Act, which includes sexual orientation as a protected class and the panel found Phillips had violated.
When Phillips appealed, the Colorado Court of Appeals upheld the commission’s order, and the Colorado Supreme Court declined in 2016 to review the decision.
Supporters of Phillips hope the high court will provide a victory for wedding vendors and others who object to being compelled to provide support for same-sex marriage.
“Consciences should be protected by law and in courts,” Southern Baptist religious freedom advocate Russell Moore told Baptist Press in written comments Dec. 5. “This case, however, shows once more that a state-established religion of sexual liberation tolerates no dissent. The lives and livelihoods of real people are on the line in this case, all because they won’t render unto Caesar that which they believe belongs to God.”
Moore, president of the Ethics & Religious Liberty Commission (ERLC), said he prays the Supreme Court “will uphold conscience over coercion and rule in favor of a public square that shows mutual respect for all its citizens.”
The ERLC filed a friend-of-the-court brief in support of Phillips.
In the arguments, Kristen Waggoner, senior counsel for Alliance Defending Freedom (ADF) who represented Phillips, told the justices the First Amendment forbids government compulsion of speech but the state of Colorado had required Phillips to communicate a message in violation of his religious beliefs and that constitutional prohibition.
The justices offered numerous hypothetical cases during the arguments. Associate Justice Elena Kagan questioned whether a chef, hairstylist or makeup artist would be analogous to a cake artist. Unlike Phillips’ artistry in designing a cake and its message, those vocations are not practicing speech, Waggoner said.
The Trump administration took part in the arguments on behalf of Phillips, with Solicitor General Noel Francisco contending the Colorado commission’s ruling violated free speech.
David Cole – representing Charlie Craig and David Mullins, the same-sex couple who sought a cake design from Phillips – told the justices the government can compel a person to communicate speech.
He does not doubt the cake artist’s religious beliefs but they produced “unacceptable consequences,” said Cole, the American Civil Liberties Union’s national legal director. Phillips’ action lowered “gay and lesbian people to second-class status,” he said.
After the arguments, ADF President Michael Farris told reporters, “This is the first time in American history there is a serious consideration of compelling people to deliver a message that is contrary to their beliefs. We recognize that on each side of this question people are going to be offended. But if being offended is enough to curtail someone else’s religious freedom or their freedom of speech, this will no longer be the same country that was founded over 200 years ago.”
He believes “we have a very good chance of prevailing in this case, but it’s going to be close,” Farris said.
Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty (BJC), said in a written statement after the arguments, “No one should doubt that the baker’s religious objection is sincere. But the assertion of a faith-based objection cannot be enough to justify an exemption from a nondiscrimination law. Such a rule would put religious liberty at greater risk.
“No customer should fear being denied goods or services by a business that is open to the public simply because of the business owner’s religious view,” she said.
The BJC represented the Southern Baptist Convention on church-state issues until the early 1990s.
More than 40 friend-of-the-court briefs were filed with the court on behalf of each party.
In addition to the ERLC, others filing briefs in support of Phillips included 86 members of Congress, 20 states or governors of states, Becket Fund for Religious Liberty, Billy Graham Evangelistic Association, Christian Legal Society, U.S. Conference of Catholic Bishops, Agudath Israel of America, the libertarian Cato Institute, National Black Religious Broadcasters and National Hispanic Christian Leadership Conference.
Among those signing onto briefs in support of the Colorado commission were the BJC; 211 members of Congress; 19 states and the District of Columbia; American Bar Association; NAACP; Americans United for Separation of Church and State; Freedom From Religion Foundation; and various religious, disability, and lesbian, gay, bisexual and transgender organizations.
Among the seven organizations joining the ERLC on its brief was the Christian Life Commission of the Missouri Baptist Convention. An individual also signed the brief.
The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)